Public Bill Committee

[Martin Caton in the Chair]
Written evidence to be reported to the House
TPIM 05 Metropolitan Police

Clause 27  - Short title, commencement and extent

Amendment proposed (this day): 126, in clause27, page15,line35,leave out from ‘Act’ to end of line and insert ‘will come into force the day after the Home Secretary reports to Parliament to confirm that paragraphs (a), (b) and (c) below have been complied with—
(a) no later than one month after the day on which this Act is passed, the Senior National Co-ordinator for Counter-terrorism will, in consultation with other relevant police organisations and the security services, produce a report to the Home Secretary detailing the additional required resources (“required resources”) that will be needed to manage the increased risks arising from the repeal of the Prevention of Terrorism Act 2005 and the passing of this Act.
(b) no later than two months after the day on which this Act is passed the Home Secretary will agree with the Senior National Co-ordinator for Counter-terrorism the required resources under paragraph (a) and the timetable for such required resources becoming deployable for use in implementing and managing measures relating to TPIM notices.
(c) This Act cannot come into force until the required resources as agreed under paragraph (b) above are made available and ready for deployment.’.—(Shabana Mahmood.)

Question again proposed, That the amendment be made.

Martin Caton: I remind the Committee that with this we are discussing amendment 141, in clause27, page15, line35,at end insert—
‘(2A) Except in so far as otherwise provided under this clause, clause 2 and all other consequential clauses in this Act will expire at the end of the period of 12 months beginning with the day on which this Act comes into force.
(2B) The Secretary of State may by order made by statutory instrument—
(a) repeal clause 2; or
(b) provide that clause 2 will not expire at the time when it would otherwise expire under subsection (2A) of this clause but will continue in force after that time for a period not exceeding one year.
(2C) Before making an order under subsection (2B)(b) of this clause the Secretary of State must consult—
(a) the Independent Reviewer of Counter-Terrorism Legislation;
(b) the police; and
(c) the security services.
(2D) No order may be made by the Secretary of State under this clause unless a draft of it has been laid before Parliament and approved by a resolution of each House.
(2E) Subsection (2D) of this clause does not apply to an order that contains a declaration by the Secretary of State that the order needs, by reason of urgency, to be made without the approval required by subsection (2D).
(2F) An order under this clause that contains such a declaration—
(a) must be laid before Parliament after being made; and
(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which the order was made, ceases to have effect at the end of that period.
(2G) Where an order ceases to have effect in accordance with subsection (2F), that does not—
(a) affect anything previously done in reliance on the order; or
(b) prevent the making of a new order to the same or similar effect.’.

James Brokenshire: Good afternoon, Mr Caton, and good afternoon to the rest of the Committee. This is the final sitting of the Bill, and when we broke for lunch, it was timely in one sense, because I was just about to respond to an intervention from the right hon. Member for Wythenshawe and Sale East on resources, which is part and parcel of amendment 126. He was pressing me over the indications from the Metropolitan Police Service about resources and the approach that was being taken. If time had allowed me before the luncheon break intervened, I was going say that the Metropolitan Police Service and I are clear that, from the commencement of TPIMs, we will have in place appropriate and effective measures to manage the transition from control orders.
I fully appreciate—I feel it as much as anyone else—the duties and responsibilities that we hold and fulfil in moving from control orders to TPIMs, and we have considered the issue clearly and have been closely engaging with the security services and the police regarding the preparations and the work at hand. I do not accept that there will be gaps. I appreciate that there have been debates about schedule 1 and all its provisions, and I recognise the points that have been made consistently during the Committee, but I do not intend to go over old ground or to repeat myself. I recognise that there are differences, but we believe that it is possible to manage the arrangement appropriately and effectively, and we are confident that will be the case when we move from control orders to TPIMs.
We had a separate debate about duration, another issue that creates strong feelings, which were expressed on Second Reading, too. Let me set out the Government’s thinking on why we did not include some form of sunset clause or annual renewal clause—a point reflected in contributions this morning. The review of counter-terrorism and security powers concluded that, for the foreseeable future, there is likely to be a need for measures to protect the public from the risk posed by the small number of people who threaten our security, but who cannot be prosecuted or, in the case of foreign nationals, deported. The package of measures we are putting in place is the result of a lengthy and considered review and is being subjected to full parliamentary scrutiny during the passage of the legislation. That is part and parcel of today’s Committee. We believe that it makes significant improvements to the control order system and that it is a good framework that ought to be able to operate on an ongoing, stable and enduring basis.
A key difference between this Bill and the Prevention of Terrorism Act 2005 is the parliamentary process involved. The 2005 Act was taken through under heavily accelerated procedures, making annual renewal an appropriate safeguard. That is the distinction between the gestation of the 2005 Act and where we are now, and that will not be the situation with this Bill. Moreover, my hon. and right hon. Friends have concluded that there is an ongoing need for powers to disrupt suspected terrorists who cannot be prosecuted or deported. Clearly, Opposition Members reached the same conclusion while in government and continue to hold that view, albeit they would rather keep a different system in place than move to the system we have outlined. Regardless of that difference between us, I think all three main parties are in agreement on the fundamental principle. In such circumstances, the Government believe that Parliament should legislate permanently.
I heard some of the debate about timing issues, and the points made by my hon. Friend the Member for Cambridge and by Opposition Members on that balance. The right hon. Member for Wythenshawe and Sale East recognised that need for balance, and the question of whether a continual, year-on-year re-examination of the facts and circumstances was appropriate. It is interesting to note the comments of Lord Carlile:
“I would not retain annual renewal. The reality is that it has been renewed from year to year, and annual renewal has been a bit of fiction, to be frank. I think that Parliament should have the courage of its convictions and decide whether it wants a regime like this or not. It can always be repealed.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 23-24, Q70.]
I recognise that there are strong feelings on this issue. What I have said will not necessarily find favour with all parts of the Committee. We have heard the strength of feeling on all sides. We acknowledge and accept that the TPIM regime, as we would wish to put it in place, is perhaps regarded as exceptional. It is regarded as something that none of us would wish to have, if I can put it that way. We wish to bring people to justice. The mechanisms, whether control orders or the proposed TPIM regime, are not what would be considered the optimal solution. We want to bring people to justice using the criminal justice system and we want to see people prosecuted, but we recognise that there is an enduring risk. There is a necessity for those we are unable to deport and for those we are unable to prosecute in that way.
In light of the recognition of the nature of the measures, I will take away all the views that have been expressed by the Committee. I undertake to look at the issue of longevity and whether there is a need to examine the issue further. I will certainly return, having reflected on and considered that point in due course.

Tobias Ellwood: I am pleased that my hon. Friend is providing that clarification. We have all talked about trying to push that very small group of people, and seeking some form of evidence so that we can then convict them. May I invite him—not now, but perhaps on Third Reading or Report—to say what is being done to invite them to go the other way and become law-abiding citizens in Britain?

James Brokenshire: I have not checked the nature of the business tomorrow, but I know that when I last looked we were due to have a debate on part of the Prevent strategy. That is an important part of the debate, and the strands are contained within the Contest strategy to prevent people becoming involved in terrorism in the first place. I am sure that there will be wider debate. That work engages with other issues that we have spoken to in this Committee before, such as intercept as evidence and examining how we are best able to bring those who commit crimes to justice. I hope that, in the light of my comments, the hon. Member for Birmingham, Ladywood will withdraw the amendment.

Shabana Mahmood: I will start with amendment 141. I am grateful to the Minister for saying that he will take away some of the points that were made earlier. I hope the Government will table an amendment on Report on which we can proceed with a consensus-based approach. If that does not happen, the issue will still be of great concern to us. We shall certainly seek to continue on Report the debate on the annual renewal, or sunset clause, envisaged in amendment 141.
Similarly, we have had a good debate on amendment 126 and have discussed the transitional arrangements in relation to resources. I still have concerns about when those resources will be deployable and ready to go on line when the Bill is enacted. Some of those issues have not been sufficiently canvassed, and unless there is further movement from the Government we will return to them on Report. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment 133, in clause27,page15,line36,leave out ‘(subject to subsection (4))’.

Martin Caton: With this it will be convenient to discuss Government amendments 134 and 135.

James Brokenshire: Amendments 133 and 134 relate to Scotland, and amendment 135 to the Channel Islands. The Committee will be aware that the Bill extends to Scotland because, primarily, it deals with the reserved matter of national security. However, powers of entry, search, seizure and retention in schedule 5, and fingerprints and samples in schedule 6, impinge on devolved matters. For example, biometric material taken under provisions in schedule 6 can be used for devolved purposes such as the prevention and detection of any crime, as well as national security or terrorist investigations. When the Bill was introduced, the Scottish Government had not had an opportunity to decide whether the relevant provisions should extend to Scotland. They have since agreed that they should, and a legislative consent motion will therefore be tabled. The amendments reflect that agreement.
Amendment 134 deletes subsection (4), which outlines the provisions in schedules 5 and 6 that did not extend to Scotland. Amendment 133 is a consequential amendment that deletes a reference to subsection (4) from subsection (3). As a result of the amendments, all provisions in the Bill will extend to Scotland as they do to the rest of the United Kingdom.
Amendment 135 removes a reference to the Channel Islands in subsection (5). As introduced, the clause would allow the Act to be extended, with appropriate modifications, to any of the Channel Islands or the Isle of Man by Order in Council. Under the amendment, such an order cannot be made in relation to the Channel Islands. The amendment is required because the Channel Islands have indicated that they would want to produce any required legislation themselves.

Amendment 133 agreed to.

Amendments made: 134, in clause27, page15, line38, leave out subsection (4).
Amendment 135, in clause27,page15,line42,leave out
‘any of the Channel Islands or’.—(James Brokenshire.)

Clause 27, as amended, ordered to stand part of the Bill.

New Clause 3  - Access to intelligence material

‘(1) The Home Secretary will brief nominated representatives of Her Majesty’s Official Opposition on the intelligence material relied upon by the Home Secretary in pursuit of a TPIM notice under section 2 of this Act.
(2) The Home Secretary will agree with Her Majesty’s Official Opposition the mechanism for nomination of representatives under subsection (1).
(3) The Home Secretary will consult with the Independent Reviewer of Counter-Terrorism Legislation on the elements of the intelligence material referred to in subsection (1) that must be included in the briefing to the nominated representatives.
(4) The Home Secretary is not under an obligation to disclose all intelligence material relied on in issuing a TPIM notice but must brief the nominated representatives so that they have a sufficient understanding of the factors and actions the Home Secretary has taken into consideration in pursuing a TPIM notice against an individual.’.—(Shabana Mahmood.)

Brought up, and read the First time.

Shabana Mahmood: I beg to move, That the clause be read a Second time.
It is pleasure to rise to speak to the new clause, which was tabled following Lord Carlile’s evidence and in light of the Joint Committee on Human Rights report of 2010. Opposition Members do not have access to the intelligence material that the Government do. It can be difficult for us to engage fully in debate when we are not aware of all the issues at the forefront of the minds of the Home Secretary and her Ministers when making decisions about counter-terrorism.
I am conscious that there is a fair bit of knowledge of counter-terrorism issues among Opposition Members, having recently come out of government. However, the new clause envisages a situation in which the Opposition have no access even to very recent historical intelligence evidence.

Julian Huppert: The hon. Lady talks about opposition, and the new clause has a capital “O” for the official Opposition. Will she recognise that there are a number of parties that are not in government, and that even the Liberal Democrats may not always be in government? One of the issues identified by Lord Carlile was that he thought that our party should have access to this information. If the hon. Lady is going to go down that line, does she not agree that access should be wider than just the two main parties?

Shabana Mahmood: I am grateful for that intervention because I was going to explain that the new clause is framed in such a way to enable a debate and to create a start for dialogue with the Government about how to put in place a mechanism to allow the official Opposition and other Opposition parties access to the intelligence material that Ministers see. I was not able to put this into the new clause, but the role of the Intelligence and Security Committee might be relevant. I am conscious that two of its members are sitting behind me. They have access to highly sensitive data and material. When they contribute to debates, they have that in mind, although they cannot in any way tell anyone about it. We might be able to have a discussion about the ISC’s role so that we can formalise a structure through which information might be shared, although I recognise that that any process could not affect its scrutiny function.
This area is worthy of more detailed discussion with the Government, so I will be grateful if the Minister indicates whether he will be prepared to enter into dialogue with the Opposition. When we engage in debates of such importance, it is important that we can do so on almost the same terms, although we recognise that those terms cannot be exactly the same.

James Brokenshire: The new clause would require the Home Secretary to provide a briefing to the Opposition on the intelligence material forming the case against an individual each time a TPIM is imposed. The precise intelligence material to be shared would be agreed with the independent reviewer of counter-terrorism legislation and would have to provide
“sufficient understanding of the factors and actions the Home Secretary has taken into consideration in pursuing a TPIM notice against an individual.”
I agree that well-informed debate and a co-operative approach are important when considering matters such as terrorism legislation. However, the hon. Lady will appreciate that there are limitations to what is possible in this area, and that is why debates on matters of national security are often difficult. Some people are understandably reluctant to believe things without having seen the sensitive underlying material themselves. That was part of what Lord Carlile said in his report, and that, in many ways, is where the new clause stems from.
The issues are particularly sensitive when it comes to individual cases because a range of sensitive intelligence that may refer to ongoing investigations could be involved. It is because of those sensitivities that, even in government, the underlying intelligence case is shared only with those Ministers and officials who have a need to know. It is not shared widely, so I am concerned by the new clause because of its grounding on that fundamental point. It would be unprecedented and inappropriate for Opposition politicians routinely to receive briefings on sensitive intelligence in individual cases.
As I said, such material is not shared widely beyond those who have a need to know. That has not been the practice of successive Governments, whether on control orders or other sensitive cases. That said, we are eager that any debates on these issues are as well informed as possible, so the Government will continue to provide briefings on Privy Council terms to Opposition Members when appropriate.
The hon. Lady referred to the role of the ISC. It is worth highlighting that the Green Paper looking at closed evidence and security is considering the ambit of the scrutiny that is applied to the security services. In some ways, I suppose that the role of the ISC comes within that context. If that forms a basis for further consideration and discussion, building on what Lord Carlile indicated in his last report, it might provide an opportunity to return to the issues in that purview.
It is right that, in most instances, the Privy Council briefings should be in general terms and on wider strategic issues, such as the terrorist threat picture. If more detail is provided, it should be on issues of critical and immediate importance to national security, such as when a major terrorist attack has occurred. It is not right that details of intelligence should be routinely provided for individual cases when there would be no clear purpose to doing so. I therefore invite the hon. Member for Birmingham, Ladywood to withdraw the new clause, although I recognise the underlying point that she wished to pursue by tabling it.

Shabana Mahmood: I am grateful to the Minister for his comments. In light of our brief discussion, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

James Brokenshire: On a point of order, Mr Caton. Having concluded our debate on the Bill’s provisions and new clauses, we have reached the point in our proceedings when we thank you, Mr Caton, and Mr Scott, for overseeing our work in Committee. If I may say so, this has been a very good Committee. I have had the pleasure and privilege to serve on a number of Public Bill Committees over the past few years, including with several right hon. and hon. Members who are in the room. The quality of our debate and the contributions made by Members on both sides of the Committee have added to the scrutiny and consideration of the Bill prior to Report.
I have greatly appreciated our—at times robust—debates. Members have rightly made passionate contributions, and we have had a good Committee stage because of the engagement by all Committee members, our informed approach, and the constructive attempts to improve the Bill. We will certainly reflect on the proceedings of the past few weeks.
Mr Caton, you and Mr Scott have certainly kept us on the straight and narrow. You have kept us in order and assured that our proceedings have been undertaken effectively. I thank the Doorkeepers for keeping us safe and ensuring that everything has been in good order in a broader sense. I also add my thanks to the Clerks for the support that they have provided to you, Mr Caton, and to other members of the Committee, and to the Hansard reporters for recording our Committee debates.
More broadly, I genuinely thank Opposition Front Benchers for the way in which they have engaged in our consideration of the Bill. I also thank Opposition Back Benchers for their contributions. There were occasions when I wondered where the Front Bench stopped and the Back Bench started, but Opposition Members have certainly added to our deliberations.
I thank my hon. Friends on the Government Back Benches for their sterling support. They have contributed their own points and thoughts, and our proceedings have been better as a consequence. I shall certainly mark out my hon. and learned Friend the Member for Sleaford and North Hykeham, whose learned contributions have given rise to robust debates across the Committee.
I thank my Whip for his support. As hon. and right hon. Members will know, there are often two silent members of the Committee: the Whip and the Parliament Private Secretary, who ensures communication with officials. I thank my hon. Friend the Member for South Swindon for his support and the service that he has provided.
Last, I thank my officials and the parliamentary counsel. Again, they are silent in Committee, but I pay tribute to their support outside the Committee and during our deliberations. Those who have been Ministers will appreciate their professionalism, dedication and hard work.
We have had a good Committee. It is notable that we have had sufficient time to consider the provisions carefully, in depth and in detail. We believe that the Bill sets out the right way forward following on from the counter-terrorism review. I look forward to continuing several of the debates that we have started in Committee when the Bill returns to the House on Report.

Gerry Sutcliffe: Further to that point of order, Mr Caton. May I put on record our thanks to you and to Mr Scott for your chairmanship of the Committee? Like the Minister, I want to thank the Clerks, and the Doorkeepers and the police, who all who keep us safe.
The quality of debate in Committee has been excellent. I am grateful that the Opposition had the experience of two former Home Office Ministers, now members of the Intelligence and Security Committee, who have been a big help. I am grateful to all Labour Members, including our Whip and my Front-Bench colleague, my hon. Friend the Member for Birmingham, Ladywood, who I believe has to leave us shortly to go elsewhere. They have all done a sterling job.
The Minister was right about the quality of the contributions made by Government Members. The Government Whip usually tells their Back Benchers not to say anything, but that has not been the case in this Committee. We have heard some fantastic contributions, and I want to single out the hon. and learned Member for Sleaford and North Hykeham—I will visit his constituency when I am next anywhere near it—because the expertise that he has brought to the Committee has been helpful. I thank Government Members for giving us their experience.
We have had a good Committee. I am sure that we will return to those issues about which we disagree on Report, but I am grateful to the Minister for the generous way in which he has conducted himself, because I think that the Committee has been the better for it.

Bill, as amended, to be reported.
Committee rose.